Fountain Valley City Zoning Code
CHAPTER 21
79 PARKLAND DEDICATIONS, RESERVATIONS AND FEES
§ 21.79.010 Purpose.
(a)
This chapter is enacted pursuant to the authority granted by the Subdivision Map Act, the Quimby Act, and the general police power of the city including the power to zone and the power to implement open space and recreational elements of the general plan. This section is adopted to implement the provisions of the Quimby Act (Government Code Section 66477), which authorizes the city to require the dedication of land for park and recreational facilities or payment of in-lieu fees incident to and as a condition of the approval of a tentative tract map or tentative parcel map for a residential subdivision. The park and recreational facilities for which dedication of land and/or payment of an in-lieu fee as required by this section are in accordance with the policies, principles and standards for park, open space and recreational facilities contained in the general plan.
(b)
The general purposes and objectives of this section are:
(1)
To preserve, enhance and improve the quality of the physical environment of the city of Fountain Valley;
(2)
To provide a procedure for the acquisition, development and rehabilitation of local park and recreational facilities;
(3)
To secure for the citizens of Fountain Valley the social and physical advantages resulting from the provision of orderly park, recreation and open space facilities;
(4)
To establish conditions which will allow park and recreational facilities to be provided and to exist in harmony with surrounding and neighborhood land uses;
(5)
To ensure that adequate park and recreational facilities will be provided;
(6)
To provide regulations requiring three usable acres, or the proportionate share thereof for each one thousand persons residing within the city to be supplied by persons proposing residential subdivisions;
(7)
To provide that unsubdivided residential property shall also contribute to park and recreational facilities.
(Ord. 1576 § 13, 2021)
§ 21.79.020 Requirements.
(a)
The requirements of this section shall be complied with by the dedication of land, payment of a fee in lieu thereof, or both, at the option of the city, for park or recreational purposes at the time and according to the standards and formula contained in this section. The amount and location of land dedicated or the fees to be paid, or both, shall be used for acquiring, developing new or rehabilitating existing community and neighborhood parks and other types of recreational facilities in such a manner that the locations of such parks and recreational facilities bear a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision generating such dedication or fees, or both. Dedications for trails shall not be included as part of any requirements for park or recreational dedication.
(b)
Lands to be dedicated or reserved for park and/or recreational purposes shall be suitable in the opinion of the planning and building director or designee ("director") and the community services director in location, topography, environmental characteristics and development potential as related to the intended use. The primary intent of this section shall be construed to provide the land for passive and active recreation, including, but not limited to, tot lots, play lots, playgrounds, neighborhood parks, playfields, community or regional parks, lakes, picnic areas, tree groves or urban forests, and other specialized recreational facilities that may serve residents of the city. Principal consideration shall be given therefore to lands that offer:
(1)
A variety of recreational potential for all age groups;
(A)
Recreational opportunities provided and maintained in a manner that will permit the maximum use and enjoyment by residents of the city of Fountain Valley;
(B)
Possibility for expansion or connection with school grounds;
(C)
Integration with hiking, riding and bicycle trails, natural stream reserves and other open space;
(D)
Coordination with all other park systems;
(E)
Access to at least one existing or proposed public street.
(Ord. 1576 § 13, 2021)
§ 21.79.030 General standard.
(a)
It is hereby found and determined that the public interest, convenience, health, safety and welfare require that three acres of property for each one thousand persons residing within the city be devoted to local park and recreational purposes.
(b)
Standards and Formula for Dedication of Land. Where a park or recreational facility has been designated in the general plan and is to be located in whole or in part within the proposed subdivision and is reasonably related to serving the present and future needs of the residents of the subdivision, the subdivider shall dedicate land for park and recreation facilities sufficient in size and topography to meet that purpose. The amount of land to be provided shall be determined pursuant to the following standards and formula:
A = 3.0 (DF x No. DU) 1000 |
(2)
When a proposed subdivision contains dwelling units with different density factors, the formula shall be used for each such density factor and the results shall be totaled.
(3)
Dedication of parkland shall not be required for parcel maps or subdivisions containing fifty parcels or less; except that when a condominium project, stock cooperative or community apartment project exceeds fifty dwelling units, dedication of land may be required notwithstanding that the number of parcels may be less than fifty.
(Ord. 1576 § 13, 2021)
§ 21.79.040 Density.
(a)
The amount of land dedicated or fees paid shall be based upon residential density, which is determined on the basis of the approved tentative map and the average number of persons per household. The average number of persons per household by unit in a structure shall be derived from the most recent available federal census or state or city population and housing data.
(b)
The number of dwelling units in a subdivision shall be the number proposed for construction. When the actual number of units to be constructed is unknown, it shall be assumed for the purposes of this chapter that the maximum number permissible by law will be constructed.
(Ord. 1576 § 13, 2021)
§ 21.79.050 Standard improvements.
The dedication of land for park and recreational purposes shall not be deemed to waive any other requirements that may be imposed by the city. The subdivider may, at the time of the approval of the tentative map, be obligated by condition to said map to provide curbs, gutters, sidewalks, drainage facilities, street lighting, stop lights, street signs, matching pavement and street trees to full city standards, to stub-in requested standard improvements required for residential property plus initial on-site grading required for developing the park facility. Additionally, the subdivider may be obligated by condition to said map to provide park improvements per the requirements of the community services director and public works director to include, but not limited to, landscaping, irrigation, lighting, playground equipment, structures, and benches, to full city standards. In lieu of making said improvements and upon approval of the planning commission or city council, whichever acts last on the tentative map, the subdivider may pay a sum as estimated by the public works director sufficient to cover the cost of said improvements. The environmental condition of any land dedicated pursuant to this section shall satisfy all federal, state and local requirements applicable to parkland and recreational facilities.
(Ord. 1576 § 13, 2021)
§ 21.79.060 Fees in lieu of land dedication.
(a)
General. Whenever the requirements of this section are met solely on the basis of the payment of a fee in lieu of land dedication, the subdivider shall pay a fee in lieu of dedication according to a schedule adopted by city council resolution.
(b)
Fees in Lieu of Land—Fifty Parcels or Less. If the proposed subdivision contains fifty parcels or less and has no park or recreational facility, the subdivider shall pay a fee according to a schedule adopted by city council resolution. When a condominium project, stock cooperative or community apartment project exceeds fifty dwelling units, dedication of land may be required notwithstanding that the number of parcels may be less than fifty.
(c)
Use of Fees. The fees paid to the city pursuant to this section and the interest accrued from such fees shall be used, in accordance with the schedule developed pursuant to Section 21.79.110(a)(3), for the purpose of acquiring, developing new, or rehabilitating existing, neighborhood or community park or recreational facilities reasonably related to serving the subdivision, including the purchase of necessary land and/or improvement of such land for park or recreational purposes. All fees collected pursuant to this section shall be transferred for deposit into a separate fund and used solely for the purposes specified in this section. All monies deposited into the fund shall be held separate and apart from other city funds. All interest or other earnings on the unexpended balance in the fund shall be credited to the fund. The money deposited in the fund account shall be committed to the partial or full completion of necessary purchases or improvements within five years after payment thereof or the issuance of building permits on one-half of the lots created by the subdivision, whichever occurs later. If the money is not committed, it shall be distributed and paid to the then record owners of the subdivision in the same proportion that the size of each lot bears to the total area of all lots in the subdivision. Any requests for refunds shall be submitted to the director in accordance with the procedures set forth in Section 21.79.130.
(Ord. 1576 § 13, 2021)
§ 21.79.070 Criteria for requiring both dedication and fee.
If the proposed subdivision contains more than fifty lots, the subdivider shall both dedicate land and pay a fee in lieu of dedication in accordance with the following:
(a)
When only a portion of the land to be subdivided is proposed in the general plan as the site for a local park or recreational facility, such portion shall be dedicated for local park purposes and shall be a credit toward the payment of in-lieu fees at the parkland acquisition and development cost per acre used to develop the in-lieu fee.
(b)
When a major part of the local park or recreational site has already been acquired by the city and only a small portion of land is needed from the subdivision to complete the site, such portion shall be dedicated, and shall be a credit toward the payment of in-lieu fees at the parkland acquisition and development cost per acre used to develop the in-lieu fee.
(c)
The fee shall be used for the improvement of the existing park or recreational facility or for the improvement of other neighborhood or community parks and recreational facilities reasonably related to serving the subdivision.
(Ord. 1576 § 13, 2021)
§ 21.79.080 Amount of fee in lieu of park land dedication.
Where a fee is required to be paid in lieu of parkland dedication, such fee shall be according to a schedule adopted by city council resolution.
(a)
Land Acquisition Cost Adjustment Challenge. If the subdivider objects to the parkland acquisition cost per acre used to develop the in lieu fee pursuant to a schedule adopted by city council resolution, the subdivider may, as outlined below, pay for an appraisal of the property to be developed to see if the fair market value of the land is less than the parkland acquisition cost per acre. Conversely the city retains the ability to increase the in lieu fee in areas where the fair market value of land exceeds the parkland acquisition cost per acre.
(b)
Fair market value of the land shall be determined by a qualified real estate appraiser who currently holds the MAI designation from the Appraisal Institute and has been selected and retained by the city at the expense of the subdivider ("qualified real estate appraiser"). The fair market value of the land shall be based on the average acre value of the property to be subdivided at the time of the recording of the final subdivision map, adjusted to reflect the value of such acre of property rough graded to a maximum two percent slope. Such appraisal shall exclude improvement. The date of value of the property for purposes of the appraisal shall be within sixty days of payment of the fee.
(c)
If the subdivider objects to the fair market value as determined by the qualified real estate appraiser, the subdivider may, within ten days, request an appeal by a hearing officer. The hearing officer provided for this appeal process shall be from a list provided by the director or one selected by the mutual consent of the parties. The subdivider shall have the burden of proof in contesting the fair market value appraisal. All decisions rendered by the hearing officer shall be final for all purposes, and binding upon the parties. If the subdivider does not request an appeal within ten days, the original decision shall stand, be final for all purposes, and binding upon the parties. If the deadline falls on a weekend or a holiday, the deadline extends to the next succeeding working day.
(Ord. 1576 § 13, 2021)
§ 21.79.090 Determination of land or fee for new subdivisions.
Whether the city accepts land dedication, or elects to require the payment of a fee in lieu of, or a combination of both, shall be determined by the director after consideration of the following:
(a)
Policies, standards and principles for park and recreational facilities in the general plan;
(b)
Topography, geology, access and location of land in the subdivision available for dedication;
(c)
Size and shape of the subdivision and land available for dedication;
(d)
Feasibility of dedication;
(e)
Compatibility of dedication with the general plan;
(f)
Availability of previously acquired park property.
The determination by the city as to whether land shall be dedicated, or whether a fee shall be charged, or a combination of both, shall be final and conclusive.
(Ord. 1576 § 13, 2021)
§ 21.79.100 Credit for improvements and private open space.
(a)
If the subdivider provides park and recreational improvements to the dedicated land other than those referenced in Section 21.79.050, the value of the improvements together with any equipment located thereon shall be a credit toward the payment of fees or dedication of land required by this section.
(b)
Common interest developments as defined in Section 1351 of the California Civil Code shall receive partial credit, not to exceed seventy-five percent, against the amount of land required to be dedicated, or the amount of the fee imposed, pursuant to this section, for the value of private open space within the development, which is usable for active recreational uses, if the authority approving the map finds that it is in the public interest to do so, and that the following standards are met:
(1)
That yards, court areas, setbacks and other open areas required by Title 21 shall not be included in the computation of the private open space;
(2)
That the private ownership and maintenance of the open space is adequately provided for by recorded written agreement, conveyance, or restrictions;
(3)
That the use of the private open space is restricted to park and recreational purposes by recorded covenant, which runs with the land in favor of the future owners of property, and which cannot be defeated or eliminated without the consent of the city or its successor;
(4)
That the proposed private open space is reasonably adaptable for use for park and recreational purposes, taking into consideration such factors as size, shape, topography, geology, access, and location; and
(5)
That facilities proposed for the open space are in substantial accord with the provisions of the general plan.
(Ord. 1576 § 13, 2021)
§ 21.79.110 Procedure.
(b)
Open space covenants for private park or recreational facilities shall be submitted to the city prior to approval of the final map or parcel map and, if approved, shall be recorded concurrently with the final map or parcel map.
(c)
Schedule of Use. At the time of the approval of the final map or parcel map, the city shall make a preliminary determination of how, when, and where it will use the land or fees, or both, to develop or rehabilitate park or recreational facilities to serve the residents of the subdivision. Final scheduling of improvements to these new or rehabilitated parks or recreational facilities shall be made as part of the city's capital improvement program.
(d)
Not Applicable to Certain Subdivisions. The provisions of this section do not apply to: (A) commercial or industrial subdivisions; or (B) to condominium projects or stock cooperatives that consist of the subdivision of airspace in an existing apartment building which is more than five years old when no new dwelling units are added.
(e)
Exemptions. The following development shall be exempt from the payment of fees pursuant to this section:
Development of real property into housing units that are either rented, leased, sold, conveyed or otherwise transferred, at a rental price or purchase price which does not exceed the "affordable housing cost" as defined in Section 50052.5 of the California Health and Safety Code when provided to a "lower income household" as defined in Section 50079.5 of the California Health and Safety Code or "very low income household" as defined in Section 50105 of the California Health and Safety Code, and provided that the applicant executes an agreement, in the form of a deed restriction, second trust deed, or other legally binding and enforceable document acceptable to the city attorney and binding on the owner and any successor-ininterest to the real property being developed, guaranteeing that all of the units developed on the real property shall be maintained for lower and very low income households whether as units for rent or for sale or transfer, for the lesser of a period of thirty years or the actual life or existence of the structure, including any addition, renovation or remodeling thereto. In projects with a mix of market-rate and affordable housing units, only the affordable housing units shall receive this exemption.
(Ord. 1576 § 13, 2021)
§ 21.79.120 Appeals.
Any person may appeal a determination of the city regarding the interpretation and implementation of this chapter. Any such appeal shall be filed with the director consistent with the requirements of Chapter 21.60.
(Ord. 1576 § 13, 2021)
§ 21.79.130 Refunds.
Requests for refunds of in lieu fees paid pursuant to this section may be directed to the director. The director may approve of a refund or a partial refund of park fees paid or release of security instruments when the following has been verified:
(a)
That the refund amount requested corresponds to the amount of fees actually deposited in the fund account established pursuant to Section 21.79.060 for a given number of dwelling units;
(b)
That the local park requirement for the dwelling units in question had been met by actual council acceptance of parkland, or by an irrevocable recorded offer to dedicate a parkland on a final tract map or parcel map;
(c)
The subdivision or building permit approval for which fees were required has been withdrawn or is otherwise no longer valid.
(Ord. 1576 § 13, 2021)
§ 21.79.140 Alternative park facilities development impact fee.
(a)
Purpose.
(2)
The imposition of development impact fees is a method of ensuring that new development bears a proportionate share of the cost of capital facilities and other costs necessary to accommodate such development. These fees are established to promote and protect the public health, safety and welfare.
(3)
A well-planned park system, with a variation in the size and nature of facilities offered is an important amenity to residents of the city. The city considers a mixture of passive and active park space uses optimal. Future residential development that does not require subdivision, will impact the city's existing park system by creating additional park users thus necessitating additional space for athletic fields, community facilities "tot lots," and other active uses and passive uses as well as passive space for businesses to enjoy.
(4)
Funds to pay for the cost of acquisition and development of additional parkland and development of currently owned but underutilized parkland as well as development of facilities will be needed to serve the increasing users caused by development in the city. Without additional parks, parks development and community facilities, the city's current parks and community facilities will become overcrowded and overused.
(5)
Pursuant to the most recent city council approved "Development Impact Fee Update Study for the city of Fountain Valley" ("DIFUS"), which is incorporated herein by reference in these findings as though set forth in full, the fees established pursuant to this chapter are derived from, based upon, and do not exceed the costs of parkland acquisition, park development and community facilities attributable to applicable new residential or nonresidential development. This study is based in part upon master planning to more specifically identify capital facilities to serve new development, the acquisition, relocation and expansion of parkland, and park development and community facilities.
(6)
The fees collected pursuant to this chapter shall be used to finance the acquisition, relocation and expansion of parkland, park development, and community facilities in furtherance of the city general plan, as well as identified in the DIFUS.
(7)
A detailed study of the impacts of future residential and nonresidential construction in the city, along with an analysis of the need for the acquisition, relocation and expansion of parkland and park facilities development is set forth in the DIFUS.
(8)
As set forth in the DIFUS, there is a reasonable relationship between the need for the acquisition, relocation and expansion of parkland, park development, community facilities, and the impacts of the types of development for which the corresponding fee is charged. In addition, there is a reasonable relationship between the fee's use and the type of development to which the fee is charged and a reasonable relationship between the amount of the fee and the cost of the facilities or portion thereof attributable to the development on which the fee is imposed.
(9)
These fees are hereafter referred to as alternative park facilities development impact fees or "alternative park fee" (or, in city's fee resolution, as "park facilities fee") and are not based on the Quimby Act authority but on the developer fee and police power authority.
(Ord. 1576 § 13, 2021)
§ 21.79.150 Intent.
(a)
An alternative park fee is being created for the purpose of assuring that the impacts created by new development in the city of Fountain Valley pay a fair share of the proportional costs for the acquisition, relocation and expansion of parkland, park development and community use facilities and related costs necessary to accommodate such development.
(b)
This chapter is intended to implement the goals, objectives and policies of the city of Fountain Valley general plan, as well as following the recommendations in the DIFUS by ensuring that the city's acquisition, relocation and expansion of parkland and community facilities development are maintained when new development is constructed within the city limits. By imposing a fee that is reasonably related to the burdens created by new development on the city's parklands, together with funding available from other city revenue sources, the city will be able to purchase land and construct the required capital improvements to accommodate projected growth and fulfill the goals, objectives and policies of the city's general plan.
(c)
It is the intent of the city council that the fee required by this alternative park fee shall be supplementary to any conditions imposed upon a development project pursuant to other provisions of the municipal code, the Subdivision Map Act, the California Environmental Quality Act, other state and local laws, ordinances or chapter provisions which may authorize the imposition of conditions on development.
(Ord. 1576 § 13, 2021)
§ 21.79.160 Definitions.
Shall be as set forth in Chapter 21.90 of this code.
(Ord. 1576 § 13, 2021)
§ 21.79.170 Parkland acquisition and park facilities development impact fee.
There is imposed a parkland acquisition and park facilities development impact fee (alternative park fee) on all non-subdivided new residential development.
(Ord. 1576 § 13, 2021)
§ 21.79.180 Fund established.
An alternative park fee fund is established. The alternative park fee fund is a fund to be utilized for payment of the actual or estimated costs of parkland acquisition and community facilities development as set forth in the DIFUS.
(Ord. 1576 § 13, 2021)
§ 21.79.190 Fee imposed.
(a)
Any person who, after the effective date of the ordinance codified in this chapter, seeks to engage in non-subdivided residential development by obtaining a building permit or other discretionary approval is required to pay a parkland acquisition and park facilities development impact fee in the manner and amount as set forth in the current city master fee resolution separately adopted.
(b)
No certificate of occupancy, temporary certificate of occupancy, or building permit approval for the activities listed in this chapter, shall be issued unless and until the alternative park fee required by this chapter has been paid to the city.
(Ord. 1576 § 13, 2021)
§ 21.79.200 Calculation of alternative park fee.
(a)
At the time of the issuance of the building permit, the planning and building director or designee ("director") shall calculate the amount of the applicable alternative park fee due as specified in the current fee resolution setting the amount of the fee.
(b)
The director shall calculate the amount of the applicable alternative park fee due by:
(1)
Determining the number and type of dwelling units in a residential development and multiplying the same by the Alternative Park Fee amount per dwelling unit or pad as established by the current fee resolution setting the amount of the fee;
(2)
Determining the number and type of dwelling units in a structure containing mixed uses which include a residential use, and multiplying the same by the alternative park fee amount for each use as established by the current fee resolution setting the amount of the fee.
(Ord. 1576 § 13, 2021)
§ 21.79.210 Alternative park fee payments for phased development projects.
If a development project will be constructed in phases, and separate building permits and certificates of occupancy will be issued for each phase, fees imposed pursuant to this chapter shall be calculated on the basis of the development characteristics of the entire development project. Payment of the fees may be made separately for each phase, provided the amount paid for each phase shall be equal to the percentage that that phase represents of the total development project's development characteristics. The fee shall be the fee in effect at the time payment is due.
(Ord. 1576 § 13, 2021)
§ 21.79.220 Alternative park fee adjustments.
(a)
An applicant for a new development project subject to a fee required by this title may apply to the city for a refund, reduction, adjustment or waiver of the fee.
(b)
Circumstances That May Justify a Fee Adjustment. Examples of circumstances that may justify a fee adjustment include, but are not necessarily limited to the following:
(1)
The development project includes an existing building that is proposed to be demolished, provided the building proposed to be demolished was capable of being used at the time of the development project application, and sufficient information about its prior use is available. Any such adjustment is limited to the amount of the fee that would otherwise be due for the new development project.
(2)
The physical or operating characteristics (e.g., hours of operation) of the new development project are substantially different from the land use on which the fee calculation is based.
(3)
The new development project includes multiple land uses that are complementary.
(4)
Property values are worth less than the city's estimated value in the methodology. Likewise, the city may present evidence in the form of an appraisal and the value is in excess of that used in the methodology.
(c)
An application for a fee adjustment shall be made and decided as follows: A separate application shall be filed for each adjustment request made pursuant to this section. Such application shall be made on a form provided by the director of planning and building or designee and shall be filed with the director of planning and building not later than:
(1)
Thirty days prior to the first public hearing on an applicable discretionary permit application for the development project, pursuant to the city zoning and subdivision ordinance; or
(2)
If no such discretionary permit is required, at the time of application for a building permit for the development project.
(d)
Each application shall state in detail the factual basis for the requested fee reduction, adjustment or waiver. The director of planning and building shall determine if the application is complete, and if not, may cause the public hearing to be continued until the application is determined to be complete. The director shall act within ten days after receipt of the completed application to approve or deny the application.
(Ord. 1576 § 13, 2021)
§ 21.79.230 Payment of alternative park fee.
(a)
The city shall collect from the applicant the alternative park fee prior to the issuance of a certificate of occupancy, temporary certificate of occupancy, or final building permit approval.
(b)
Except for any administrative charge allocated to the city, all funds collected shall be properly identified and promptly transferred for deposit in the alternative park fee fund and used solely for the purposes specified in this chapter.
(Ord. 1576 § 13, 2021)
§ 21.79.240 Use of alternative park funds.
(a)
Funds collected from the alternative park fee shall be used to fund the costs of providing the acquisition, relocation and expansion of parkland and park facilities development attributable to new residential construction and shall include:
(1)
The acquisition of additional property for the expansion of parkland and community facilities development;
(2)
The construction of new parks and park facilities and community use facilities (except for non-residential as set forth in the DIFUS);
(3)
The funding of a master plan to identify capital facilities to serve new parkland and park facilities and community use facilities development;
(4)
The cost of financing (e.g., interest payments);
(5)
Projects identified in city of Fountain Valley general plan.
(b)
Funds shall not be used for periodic or routine maintenance or to maintain or repair existing parkland or park facilities or community facilities.
(c)
Revenue raised would be limited to capitalized cost related to growth.
(d)
In the event that bonds or similar debt instruments are issued for advanced provision of capital facilities for which alternative park fees may be expended, fees may be used to pay debt service on such bonds or similar debt instruments to the extent that the facilities provided are of the type described in this chapter.
(e)
Funds may be used to provide refunds as described in this chapter.
(Ord. 1576 § 13, 2021)
§ 21.79.250 Alternative park fee refund.
(a)
Any applicant who has paid an alternate park fee pursuant to this chapter may apply to the director for a full or partial refund of same, if, within one year after collection of the alternative park fee the fee has been modified as follows: reduction in the number of dwelling units, a change in the type of dwelling units, a reduction in square footage, or the applicability of an exemption pursuant to this chapter. In the event a refund is issued, the city may retain a sum up to twenty percent of the alternate park fee paid by the applicant to offset the administrative costs of refund. In no event shall a refund exceed the amount of the parkland acquisition and park facilities development impact fee actually paid.
(b)
Erroneous or Illegal Collection. Fees will be refunded if the applicant demonstrates to the satisfaction of the director that they were erroneously or illegally collected. If the director determines the fees were not erroneously or illegally collected, then the applicant may appeal the decision pursuant to Chapter 21.60, Appeals. An application for a refund pursuant to this section must be filed within ninety days after the payment of the fees.
(c)
City Failure to Commit Funds. Pursuant to the Mitigation Fee Act, upon application of the then current landowner, fees will be refunded if the city fails to commit them to a project of the nature or type identified in the DIFUS within five years from the date that the fees were collected from the applicant. For purposes of this subsection, fees are deemed to have been "committed" if they have been budgeted or otherwise encumbered by the city for an eligible improvement, studies, design drawings or any necessary applications for approval by other governmental agencies have been initiated, construction bidding has been initiated, or improvements are under construction. Eligible refunds, plus interest at the city's average annual cost of funds, will be made only upon an application filed within one hundred eighty days of the expiration of the fifth anniversary of the fee payment.
(Ord. 1576 § 13, 2021)
§ 21.79.260 Exemptions and credits.
(a)
Exemptions. Any claim of exemption must be made no later than the time of application for a building permit or construction approval. Any claim of exemption must be filed in the same manner and will be considered pursuant to the same procedure as for a fee adjustment as provided in Section 21.79.270. The following shall be exempted from payment of the alternative park fee:
(1)
Residential Development.
(A)
Alteration or expansion of an existing residential building in which no additional dwelling units are created, the use is not changed, and where no additional relocation and expansion of parkland and park facilities development will be provided over and above those provided by the existing building.
(B)
The replacement of a destroyed or partially destroyed building or structure with a new building or structure of the same size and use, provided that no additional relocation or expansion of parkland and park facilities development will be required over and above those provided by the original use of the land.
(C)
The construction of residential accessory buildings, structures, accessory dwelling units per Chapter 21.08, or uses which will not require additional acquisition, relocation or expansion of parkland and park facilities development over and above those provided by the principal building or use of the land.
(D)
Construction, replacement or rebuilding of a single-family dwelling (one unit per lot) on an existing lot of record, or the moving and relocation of a single-family home from one lot within the city to another lot within the city. This exemption shall not apply to tract development, to the development of more than one unit per lot, nor to the replacement of a single-family dwelling with more than one dwelling unit.
(2)
Affordable Housing for Lower Income Households. Property rented, leased, sold, conveyed or otherwise transferred, at a rental price or purchase price which does not exceed the "affordable housing cost," as defined in Section 50052.5 of the California Health and Safety Code when provided to a "lower income household" as defined in Section 50079.5 of the California Health and Safety Code or "very low-income household" as defined in Section 50105 of the California Health and Safety Code. This exemption shall require the applicant to execute an agreement to guarantee that the units shall be maintained for lower and very low-income households whether as units for rent or for sale or transfer. The agreement shall be in the form of a deed restriction or other legally binding and enforceable document acceptable to the city attorney and shall bind the owner and any successor-in-interest to the real property being developed. The agreement shall subordinate, if required, to any state or federal program providing affordable housing to lower and very low-income households. The agreement shall be recorded with the Orange County Recorder prior to the issuance of a certificate of occupancy. Applicant or any successor-in-interest shall be required to provide annually, or as requested, the names of all tenants or purchasers, current rents and income certification to ensure compliance. Voluntary removal of the housing restriction or violation of the restriction shall require the applicant or any successor-in-interest to pay the then applicable parkland acquisition and park facilities development impact fee at the time of voluntary conversion or as imposed at the time of violation on the unit in violation, plus any attorneys' fees and costs of enforcement, if applicable. In projects with a mix of market-rate and affordable housing units, only the affordable housing units shall receive this exemption.
(3)
Industrial or Commercial Subdivisions, Condominium, or Stock Cooperatives. The provisions of this section do not apply to industrial or commercial subdivisions, condominium projects or stock cooperatives which consist of the subdivision of airspace in an existing apartment building which is more than five years old when no new dwelling units are added, or to any other subdivisions exempted by Map Act Section 66477.
(b)
Credits. Any applicant whose development is located within a community facilities district (CFD) and/or is subject to the assessments thereof, shall receive an offset credit towards the fees established by this chapter to the extent that the assessments fund improvements within the CFD which would otherwise be funded by the development impact fees established by this chapter.
(Ord. 1576 § 13, 2021)
§ 21.79.270 Appeals.
Shall be as set forth in Chapter 21.60 of this code.
(Ord. 1576 § 13, 2021)
§ 21.79.280 Credit for construction of non-site-related improvements.
(a)
Applications for credit for construction of non-site-related improvements shall submit applicable engineering drawings, specifications and construction cost estimates or the like to the public works director. The public works director shall determine any credit for improvement based on either these cost estimates or alternative estimates if the public works director determines reasonably that the estimates submitted by the applicant are either unreliable or inaccurate. In no event shall the amount of the credit exceed the improvement cost specified in the DIFUS, or other applicable basis for the fee, nor shall the credit exceed the amount that would otherwise apply.
(b)
No final inspection or certificate of occupancy for the development project may be issued until: (1) the construction is completed and accepted by the city; (2) a suitable maintenance and warranty bond is received and accepted by the city; and (3) all design, construction, inspection, testing, bonding and acceptance procedures are in strict compliance with city paving, drainage and other applicable requirements.
(Ord. 1576 § 13, 2021)
§ 21.79.290 Eligible expenditures from fee reserve account.
All monies and interest earnings in any reserve account shall be expended on the projects of the nature or type identified in the DIFUS, or such other report as may be prepared from time to time to document the reasonable fair share of the costs to mitigate the acquisition, relocation and expansion of parkland and park facilities development impacts of new development.
(Ord. 1576 § 13, 2021)
§ 21.79.300 Annual report and amendment procedures.
(a)
Within one hundred eighty days after the last day of each fiscal year, the assistant city manager of the city of Fountain Valley shall evaluate progress in implementation of the parkland acquisition and park facilities development impact fee and shall prepare a report thereon to the city council in accordance with Government Code Section 66006, incorporating among other things:
(1)
Any parkland acquisition, park development and community facilities development commenced, purchased or completed utilizing monies from the parkland acquisition and park facilities development impact fee fund;
(2)
The amount of the fees collected and the interest earned;
(3)
The amount of parkland acquisition and park facilities development impact fees in the fund; and
(4)
Any recommended changes to the parkland acquisition and park facilities development impact fee, including, but not necessarily limited to, changes in this parkland acquisition and park facilities development impact fee chapter or fee resolution.
(b)
Based upon the report and such other factors as the city council deems relevant and applicable, the city council may amend the ordinance codified in this chapter or the fee resolution implementing this chapter. Changes to the parkland acquisition and park facilities development impact fee rates or schedules may be made by amending the fee resolution. Any change which increases the amount of the parkland acquisition and park facilities development impact fee shall be adopted by the city council only after a noticed public hearing. Nothing herein precludes the city council or limits its discretion to amend the ordinance codified in this chapter or the fee resolution establishing parkland acquisition and park facilities development impact fee rates or schedules at such other times as may be deemed necessary.
(Ord. 1576 § 13, 2021)
§ 21.79.310 Effect of alternative park fee on zoning and subdivision regulations.
This chapter shall not affect, in any manner, the permissible use of property, density/intensity of development, design and improvement standards and public improvement requirements or any other aspect of the development of land or construction of buildings, which may be imposed by the city pursuant to the city's zoning regulations, subdivision regulations or other ordinances or regulations of the city, which shall be operative and remain in full force and effect, without limitation, with respect to all residential and nonresidential development.
(Ord. 1576 § 13, 2021)